Businessman wins Sh6.3m for malicious prosecution after botched raid

A court awarded a businessman Sh6.3 million for malicious prosecution after a flawed anti-counterfeit raid on his home and warehouses.

The High Court in Nairobi found that the Anti-Counterfeit Authority and police acted without reasonable cause when they seized goods worth millions of shillings from James Kimani Mwangi and his wife Anne Nyokabi Wakang’u in May 2015.

The raid targeted their business premises at Avenue Park Phase II Estate and their family residence in Loresho, where armed officers held the family under what the court described as effective house arrest for two weeks.

Mwangi was arrested and detained at Spring Valley police station for three days before being charged in five separate criminal cases.

He was later acquitted after a magistrate found he had no case to answer.

“He confirmed that the seized goods were subjected to Kenya Bureau of Standards tests and that neither the bulbs nor edible oils were found to be counterfeit as purported,” the court heard. 

He also claimed that police stole assorted jewellery from his home during the raid.

“As a consequence of the aforementioned the plaintiffs claim damages for unlawful detention, malicious prosecution, legal costs expended, breach of the first and second plaintiffs' right to freedom and liberty, damages for defamation, loss of opportunity and business, damages or unusable condition of the confiscated goods upon partial release,” court records show.

The Anti-Counterfeit Authority defended its actions. Its inspector, Caspar Mark Owino Oluoch, told the court that brand owners had confirmed the seized goods were fake.

“On cross-examination, he stated that among the goods seized were Philips bulbs which the brand owner confirmed were counterfeit for having similar design; welding rods by Welrods who also confirmed that the welding rods were counterfeit; ball pens that were also confirmed to be counterfeit for having similarities with Bigball Pens; Olivia Oil that had similar design with KAPA oil that produced Rina Oil, who equally confirmed that the similarities meant that the oils were counterfeit, to wit, the totality of the forestated were seized.”

But Justice Janet Mulwa ruled that the defendants failed to show any intelligence report, complaint or prior investigation that would justify the raid.

“To iterate, no reasonable evidence was led to the effect that the plaintiff had committed a cognizable commission in respect of the counterfeiting, or prior investigations done in respect of the plaintiff's business as to the question of counterfeiting…,” the judge stated.

The judge found the authority liable for malicious prosecution, unlawful arrest and false imprisonment.

She awarded Sh5 million in general damages for malicious prosecution, Sh800,000 in exemplary damages and Sh500,000 for unlawful arrest, all to be paid jointly and severally by the defendants.

However, the court rejected the plaintiffs’ claim for Sh600 million in special damages for lost goods and Sh3.5 million in legal fees, ruling that they had not provided receipts or properly itemised their losses.

An audit report claiming losses of over Sh2 billion was dismissed as lacking supporting documentation.

The Anti-Counterfeit Authority’s counterclaim for storage costs of more than Sh1.3 million was also thrown out, with the judge noting that no court order or formal demand to collect the remaining goods had been produced.

The judge ordered that the awarded amounts attract interest at court rates from the date of judgment until full settlement. Costs of the suit were awarded to the plaintiffs.